Andrea Yates, the Texas woman who was convicted of murdering her five children, is going to get a new trial. The result seems correct, because the original trial was tainted by testimony from prosecution expert Dr. Park Dietz, who claimed that Yates might have inspired by a particular episode of "Law and Order." There was no such episode.

In the retrial, I hope that Yates does not enjoy another outpouring of sympathy from misguided feminists, such as the Texas chapter of the National Organization for Women, which organized a candlelight vigil on her behalf. As I detailed in 2001, several nations--including Great Britain, Canada, Italy, and Australia--have de facto de-criminalized infanticide perpetrated by mothers. The minimal punishments (mandatory counseling and probation rather than prison time) are an extreme and deadly version of the soft bigotry of low expectations. I strongly hope that Americans resist the claims of people who want to give a free pass to murdering mothers under the theory that the stresses of parenthood are an excuse of premeditated multiple homicide.

Why, David? Just consider them seriously-delayed late-term abortions. After all, some of these are of kids under a year-old, and that's not much different from post-viability. The esteemed Peter Singer even says we should have some bonus time post-birth to think about it. And Barbara Boxer said that legal protection doesn't begin until you finish driving home from the hospital.

What do you define as a "free pass"? Even if acquitted, Yates would likely be subject to a lifetime of institutionalization under Texas law. In comparison to the death penalty sought by the state (perhaps to ensure a death-qualified, pro-prosecution jury?), that may not seem like much of a punishment to you, but it's hardly a "free pass."

It seems to me the issue is a lot more complicated than you are suggesting. For one thing, it seems possible to me that postpartum psychosis and postpartum depression are legitimate considerations in these cases. The relevant issues would include whether these phenomena are avoidable, whether they are reliably diagnosable, and to what extent they are relevant to considerations of mens rea.

Another set of issues would involve the proper way of dealing with such considerations in the legal system. Legitimate cases of postpartum psychosis (which I understand to be quite rare) might well be grounds for giving someone a complete "free pass" (meaning that they may have no moral culpability for killing their child due to their mental condition at the time, and yet they may also be fully recovered from that condition).

Postpartum depression (which I gather is much more common) may not be the sort of thing that merits a "free pass," but it might at least be a mitigating factor in sentencing, and it could also suggest that a lesser charge (something like manslaughter) could be appropriate depending on the severity of the effects and any other contributing factors.

Of course, I say this all without knowing too much about the actual science of postpartum depression and postpartum psychosis. But similarly, without knowing more about these phenomena, I don't see how one can assume that incorporating them in some way into our legal responses to infant murders is necessarily unjustifiable.

Talk about a knee jerk right wing reaction. Do you believe in any mental defenses or mitigations? Be sure to disqualify yourself if you are ever called for jury duty, although with this administration, they might make you a judge.

Dave, I'm British and this is the first that I have heard of any decriminalisation of infanticide in my country.

In my own home town, Donna Anthony* was convicted of two separate deaths, one child was 11 months old and one was 4 months old at the time. If the law in Britain was as you described, she would have had no more than a slap on the wrist. In fact she was convicted of murder and sentenced to life imprisonment.

* later found innocent as the deaths were proven to be from natural causes after Donna had served seven years in jail.

I would love to know your cite for your claim that Barbara Boxer does not believe babies are entitled to legal protection until they are driven home from the hospital. Good luck.

[DK: "I think when you bring your baby home, when your baby is born - - and there is no such thing as partial-birth - - the baby belongs to your family and has all the rights." Congressional Record, Oct. 20, 1999, exchange with Sen. Santorum at pages S12878-80.
http://www.nrlc.org/news/1999/NRL1199/boxsan.html
As the colloqy shows, she later appeared to retreat from this position.]

Andrea Yates is a clear case of insanity. HOWEVER, it is religious insanity (hell, her kids were all named after biblical figures) and I think religious insanity is brought on by oneself, rather than being an organic defect. I don't think religious insanity should be able to be a basis for the insanity defense; only organic insanity should. That being said, I'm glad and surprised the texas CCA did not reverse the 1st Court of Appeals. She certainly deserves a new trial.

You are kidding, right? You don't really think that those remarks show that she was taking that position and then later retreating, do you? It's obvious what she was trying to do - not get sucked into the slippery-slope BS argument Santorum was trying to suck her into. Seriously, you can't believe that.

Again, I'm no expert on postpartum psychosis, but as I understand it, the relevant delusions often end up manifesting themselves in religious or quasi-religious ways. So even if it is true that Yates was deeply religious, and true that her delusions were religious in nature, I'm not sure you can conclude that it was her religious beliefs, rather than postpartum psychosis, that brought on her delusions.

I terribly regret my word choice on the abortion matter discussed supra. But I wanted to choose strong words that would convey that fetal homicide of any variety is a bunch of hoey. Women are very important people. Women have lots of constitutional protections in the privacy clause. But infants don't. A baby woman is not really a woman at all, but an infant.

Also, I have read the VC long enough to emphatically declare that this thread is now over. Pritesh and Bobbie-explicit Godwin's law violation. That will be 15 yards AND loss of down.

Well, I suspect the rival hypothesis is that she might have gotten the idea from something like an auditory hallucination. And obviously that hypothesis would support a finding that she was psychotic, whereas the Law &Order hypothesis would not. So in that sense it matters whether she got the idea from something real, or rather from sort of psychotic delusion.

I take issue with your comment "the result seems correct." Under the harmless error rule, the result seems, to me, absurd. There was abundant evidence, including her own confession, that Andrea Yates murdered her 5 children. Just because a prosecution expert witness erroneously testified about an episode of a TV show, the taxpayers must now foot the bill to the tune of several hundred thousand more dollars to re-try Mrs. Yates. There is no way the admission of this miniscule evidence was "calculated to lead to and did lead to the rendition of a guilty verdict."

Krauthammer says that she clearly knew that what she did was illegal. Isn't that enough mens rea for an insanity defense to be unavailable? so, if I break my ConLaw professor's face, I can say, I knew it was illegal, but he's such a jerk, I not only didn't know it was wrong, I thought it was right. And I am let off. If only...

If this pitiful wretch lived outside Texas, she would probably be in a mental institution trying to recover, not on trial (again) for her life.

It breaks my heart thinking of those children, but anyone who thinks even a preponderance of the evidence shows that she sanely willed to kill those children, has a screw loose themselves. Rare that I agree with Krauthammer, but this one isn't a close call.

She cannot be re-tried solely on one component of what constitutes a violation of the Penal Code. The state must prove again prove all elements, including her mens rea.

And, for what its worth (like the rest of us, I certainly did not hear all the evidence) her own lenghty, detailed confession alone was enough to justify the jury's implied decision on the sanity plea.

I haven't followed the case all that closely, but I don't think this was the typical "kill people then plead insanity because all the evidence is against me" type of case. I thought she had pretty severe mental problems, well documented, and long before the murders. I don't know whether she meets the legal standard for insanity in Texas (which I seem to recall is very high) but insanity in her case isn't just a trumped up excuse to get away with murder. That woman has serious mental problems and frankly her husband should have been doing more to deal with them.

I was remembering this case correctly: here's a quote from the Krauthammer article:

Said Dr. Eileen Starbranch, the psychiatrist who treated one of her postpartum depressions, "She would rank among the five sickest -- and most difficult to get out of psychosis -- people that I've ever treated." And while her psychosis could often be controlled by medications, her doctor had stopped her antipsychotics just weeks before the killings. Even the prosecution psychiatrist admitted that when interviewed the day after the killings, she was "grossly psychotic," telling the county jail psychiatrist that voices had told her to kill her children.

There were some other facts suggesting that Mrs Yates was under more than the usual pressures of a mother of five small children. As I recall from articles by Michelle Cottle in the New Republic, Mrs. Yates was off her meds at the insistence of Mr Yates, whose stated reason was he wanted to have more children! There were indications that Mrs Yates was fairly out of control before the murders—household chaos, etc. plus managing all six children with no help (Mr Y apparently believed the wife was supposed to play a traditional role in housekeeping, childbearing and rearing). I thought it very unfortunate that his role in the situation was not much mentioned during coverage of the trial. Even if it would be pushing it to consider him an accessory before the fact, his behavior should be considered a factor in her state of mind at the time of the murders. Since her conviction, of course he has divorced her.

Here's the link
http://www.tnr.com/doc.mhtml?i=express&s=cottle022202
(may be subscribers only, so I insert relevant quote below:
"Long before the trial began, the blame game was in full bloom. Yates's husband went on "60 Minutes" to blame the medical community for not adequately treating his wife. The defense team is blaming not only Andrea's doctors but also her husband, who they say exacerbated his wife's illness by pushing for more kids and insisting that Andrea home-school the older children. Andrea has repeatedly blamed herself for being a bad mother (hard to argue with that), while feminists and mental health advocates blame society for ignoring the scourge of postpartum depression.

There is truth to all these accusations but not total truth. And, as the case stands now, there is virtually no chance that justice will be served. Yates is, by all accounts, a very sick woman. She has been in and out of treatment and on and off medication for postpartum depression for years. After the birth of her fourth child in 1999, Yates twice attempted suicide—once with pills, once with a steak knife. Compounding the problem, her husband seems to be an absolute cretin who, despite Andrea's obvious problems, kept pressuring her to churn out babies. In 1999, after Andrea's suicide attempts, he told her psychiatrist that he wanted to get her off medication and pregnant again, according to medical records. After the fourth child was born, Rusty (and presumably Andrea) also decided that a preacher's advice to "live a Spartan life" meant that they should move the whole family into a converted Greyhound bus. Spending all day, every day with four kids in a living space all of 350 square feet large probably did wonders for Andrea's mental state. Not that it excuses what she did, of course. But if you have any qualms about executing the mentally ill, this case should give you the willies. It should also make you wonder whether there isn't a way to charge dear Rusty with reckless endangerment."

There were some other facts suggesting that Mrs Yates was under more than the usual pressures of a mother of five small children. As I recall from articles by Michelle Cottle in the New Republic, Mrs. Yates was off her meds at the insistence of Mr Yates, whose stated reason was he wanted to have more children! There were indications that Mrs Yates was fairly out of control before the murders—household chaos, etc. plus managing all six children with no help (Mr Y apparently believed the wife was supposed to play a traditional role in housekeeping, childbearing and rearing). I thought it very unfortunate that his role in the situation was not much mentioned during coverage of the trial. Even if it would be pushing it to consider him an accessory before the fact, his behavior should be considered a factor in her state of mind at the time of the murders. Since her conviction, of course he has divorced her.

Here's the link
http://www.tnr.com/doc.mhtml?i=express&s=cottle022202
(may be subscribers only, so I insert relevant quote below:
"Long before the trial began, the blame game was in full bloom. Yates's husband went on "60 Minutes" to blame the medical community for not adequately treating his wife. The defense team is blaming not only Andrea's doctors but also her husband, who they say exacerbated his wife's illness by pushing for more kids and insisting that Andrea home-school the older children. Andrea has repeatedly blamed herself for being a bad mother (hard to argue with that), while feminists and mental health advocates blame society for ignoring the scourge of postpartum depression.

There is truth to all these accusations but not total truth. And, as the case stands now, there is virtually no chance that justice will be served. Yates is, by all accounts, a very sick woman. She has been in and out of treatment and on and off medication for postpartum depression for years. After the birth of her fourth child in 1999, Yates twice attempted suicide—once with pills, once with a steak knife. Compounding the problem, her husband seems to be an absolute cretin who, despite Andrea's obvious problems, kept pressuring her to churn out babies. In 1999, after Andrea's suicide attempts, he told her psychiatrist that he wanted to get her off medication and pregnant again, according to medical records. After the fourth child was born, Rusty (and presumably Andrea) also decided that a preacher's advice to "live a Spartan life" meant that they should move the whole family into a converted Greyhound bus. Spending all day, every day with four kids in a living space all of 350 square feet large probably did wonders for Andrea's mental state. Not that it excuses what she did, of course. But if you have any qualms about executing the mentally ill, this case should give you the willies. It should also make you wonder whether there isn't a way to charge dear Rusty with reckless endangerment."

DK's link is what I had in mind. True, Boxer did try to back off, but she never did provide a substitute borderline between non-protected life and protected life. Her insistence that she wouldn't comment re "all but a toe," etc., shows that she can't distinguishm with a straight face, between a minute before birth, or after birth. So why not the two-hour-old kid? And of course, Singer is expressly for that.

For those who take Boxer's side rather than Santorum's on the limited Q of partial-birth abortion -- do you read the transcript with pride in your advocate, or do you cringe at her "argument" ??

As for Yates, I admit that I don't know enough to have an informed opinion, but Krauthammer's piece sounds reasonable, and he's usually sensible.

The insanity defense is a joke in the US. The standard is so high that the only way a jury can find insanity is through jury nullification.

Prosecutors will often correctly argue that shame or an attempt to hide a crime is a sign that a defendant knew right from wrong. But if your dog eats your slippers while you are at work, your dog will often hide because it knows it did wrong.

So, to prove insanity, you have to show that a defendant's mental illness has made him or her less mentally fit than a dog.

One of the great shames of our criminal justice system is that it refuses to make a serious attempt to distinguish between the truly mentally ill and the evil. After Hinkley, the system just decided to lump everyone in the "evil" category. It would have been simpler and more honest just to abolish the insanity defense.

I forgot to add, the other two commentators were right to ask Kopel about the Nazis and the mentally ill. My guess is that the Nazis would have executed Yates, just like many in the State of Texas wanted.

The insanity defense is especially ridiculous in texas. First of all, texas doesn't even recognize the defense of diminished capacity to negate mens rea. You either plead not guilty by reason of insanity, and hope that you can prove that you didn't understand the difference between right and wrong, or you don't get to introduce evidence of mental defects at all. Full-blown insanity or nothing. A retarded person who knows right and wrong, but doesn't understand and is incapable of understanding, say, state campaign finance laws (no i'm not talking about Tom Dale "Gribble" Delay) likely cannot introduce evidence that they're retarded and didn't understand the laws at the guilt/innocence phase of trial.

And, of course, no matter how crazy you are, and even if you can prove you didn't know the difference between right and wrong, if the crime you're accused of involved hurting children, you get the needle. Motions in limine to prevent the state from talking about "the precious children" and "saving the children" and "the children are our future" and other such pablum so common in our national discourse always fail.

Even outside the context of killing of infants, female defendants use insanity defenses successfully much more often than male defendants, even though there is not a shred of evidence that women are more likely to be insane than men.

People simply do not want to accept the reality that a woman could possibly commit a violent crime, and use gender stereotypes to justify declaring female criminals insane, even when evidence of insanity is quite weak.

The result is that many female criminals avoid any accountability for their actions.

If Andrea Yates were a male care-giver -- say, a widower taking care of five kids -- who killed children, she would have gotten at least a life sentence, and possibly the death penalty.

While she may have suffered from mental illness, she voluntarily chose to stop taking the medication she was warned to take, and knew what she was doing when she killed her children. It's not like the person who's so insane she thinks she is slicing up a watermelon when she's actually slicing up her child.

Gender disparities in the criminal justice system are huge. According to the Bureau of Justice Statistics' study of large urban counties, women who commit unprovoked killings of their husbands get only 7 years in jail, compared to the 17 years husbands get for killing their wives. Seven years for a life -- that's grossly inadequate.

The Texas appeals court's overruling of Yates' conviction (on the grounds that jurors may have thought that a fictional TV show Yates watched depicted a similar child-murder) was based on laughable reasoning that was a gross insult to the public's intelligence. Any error was harmless. The grounds for reversal were so weak as to be a mere pretext.

1. Is there a laboratory test for mental illness?
2. Can any psychiatrist distinguish between someone "really" mentally ill and a good actress putting on a performance?
3. What's the difference between mental illness and physical illness?
4. Is mental illness a brain disease?
5. If someone has a brain illness, shouldn't they be seeing a neurologist?
6. What's the big deal about "hearing voices"? I can imagine hearing voices anytime I want, just like a musical composer can imagine hearing his musical composition in his head.

1. Is there a laboratory test for mental illness?
Yes, there are a number of tests with significant science behind them.

2. Can any psychiatrist distinguish between someone "really" mentally ill and a good actress putting on a performance?
The tests are designed to screen for "malingering." Anyone who has spent much time with criminal defendants knows that there are very, very few who are smart enough to know how to try.

3. What's the difference between mental illness and physical illness?
This is beyond the scope of what I have time to research or answer now.

4. Is mental illness a brain disease?
Yes, in a way.

5. If someone has a brain illness, shouldn't they be seeing a neurologist?
Maybe. It depends on the illness.

6. What's the big deal about "hearing voices"? I can imagine hearing voices anytime I want, just like a musical composer can imagine hearing his musical composition in his head.
Yes, but you know they aren't real, and you know not to act on them.

Like many other factual disputes, in the end, juries must decide if someone's mental illness is sufficient for an insantity defense. But virtually no one truly meets the definition of legal insanity. As I said above, juries who find a defendant insane almost always have committed jury nullification.

In effect, we have decided that because there are a few hard cases, the legal system will treat everyone as if they were fully competent. That's why jails and prisons are some of the biggest mental health providers in this country (if not the biggest).

I'm delighted that some of you guys have never known or experienced mental illness in yourselves or anyone near or dear to you. Because only an overwhelming naivete could produce some of the callous remarks above. However, such lack of knowledge and experience does make you inequipped to understand or discuss informedly the facts (or otherwise) of a case like this.

Mental illness is a tragedy and a curse. It's one of the worst things that can ever happen to a person. Good people can do things way way out of character, including to harm loved ones.

I hope you never suffer like that - it can strike anyone, you know - but if you do, and, God forbid, you kill a family member, I hope you find yourselves confronting an intelligent and compassionate jury in a jurisdiction that recognises the sickening reality of mental illness.

I believe in the death penalty. But the needle is for drug dealers, mafiosi, and other thugs and gangsters, not the mentally ill.

It's funny that you believe someone is "callous" because that person questions your view of "mental illness," but you the favor judicial murder of drug dealers (but only those selling chemicals NOT APPROVED BY THE STATE, not those selling alcohol). Some "compassion" you have!

I may have missed it in the replies above, so forgive me if my question has already been addressed. Doesn't it matter that one of the jurors wrote to the judge saying that Dietz's testimony about the show was the primary reason he (the juror) voted the way he did? Hans Bader's post above may be applicable in other situations, but it doesn't seem to me to fit the facts of the present situation.

Assuming it is true that there is a gender gap in the successful use of mental-health-related defenses (an issue, I might note, that may not be applicable to postpartum depression and psychosis, given that only women give birth), I don't see why I should also assume that it is the women getting off too easy, rather than the men being treated too harshly, or, for that matter, a combination of both.

Incidentally, for any given defense (mental health related or otherwise), there are undoubtedly going to be defendants trying to abuse that defense, and probably a few will succeed. But are mental-health-related defenses really categorically worse in that sense?

For example, there isn't a "laboratory test" for self-defense claims either, and undoubtedly sometimes defendants are lying when they claim self-defense, and probably some of those people are going to succeed. But I don't see anyone arguing that we should get rid of self-defense entirely. So why the special hostility for mental-health-related defenses?

I, too, am somewhat amazed at the sarcasm here about mental illness. I'm tempted to suspect some very young, very jejeune libertarians who just haven't been out in the real world very much.

Although the evidence is pretty jumbled, it's evident that depression, schizophrenia, and so on are associated with chemical and/or other physical conditions in the brain. That makes lots of sense: I mean, how do you think the brain works? It's a physical object. And why should it be any more immune from getting screwed up in its functions than your pancreas or, for that matter, your car's transmission?

Andrea Yates was being treated off and on for postpartum (hormone changes affecting the brain, anyone?) depression. Obviously it didn't work, one suspects in no small part because her husband discouraged compliance and added additional stress.

Despite Krauthammer's solid counterargument, there's good reason for an insanity defense to depend on the defendant being so insane that he does not know that what he is doing is condemned by society: it is under those conditions that deterrence can work.

If one can avoid conviction from belief that a killing is actually moral, even though condemned by society, then anyone (at least with some mental illness) with a claim of God's sanction would properly be acquitted, as would those who believe that Satan is Lord, that Moloch demands child sacrifice, or even that the world properly revolves around their own "needs." Since most killers would make such claims, we'd presumably have to add mental illness as a second condition for acquittal. (Whereas now severe mental illness is generally a given for people not knowing of society's condemnation of murder, it takes no real mental illness to believe that a killing is morally acceptable, and so we'd separately need to decide whether or to what extent a moral monster has to be insane to get off on the grounds of amoral or immoral belief.)

To get back to more serious cases (like Yates), even the severely insane must generally be seen as having free will. They will avoid committing crimes in front of the police, and they know the consequences of their actions. Some who may now want to kill, refrain -- like the rest of us who are sane -- because they know that society and the state will condemn them. Just as even Andrea Yates knew that society and the state now condemn murder, people like Yates will know it if and when murder is essentially decriminalized for them, and more will listen to their "conscience" when it tells them it's right to kill.

All that said, I think the real resistance to the insanity defense comes from the fear that, whether currently insane or not, by whatever definition, a killer will get out of an asylum as soon as his psychiatrists maintain he's no longer dangerous. While psychiatric illness may be as "real" as physical illness, many of us do not trust the predictive powers or judgment of psychiatrists enough to permit this. If, based on the precautionary principal, insane murderers were always held for life, then I do not think that juries or political bodies would be reluctant to have an easier insanity defense. (The defense would then only buy one out of the death penalty, and perhaps into a more humane confinement than a prison.)

There are hundreds of questions on the psych tests. To have to get a certain series of answers to receive a specific diagnosis. Some answers are inconsistent for people honestly taking the tests. And the tests are not publicly available, so you can't prepare.

If you think the tests can be faked, tell me, what answers do you need to give (and not give) to obtain a diagnosis of paranoid schizophrenia?

Of course, in any case that the State thinks the defendant is making it up, the State can have the defendant examined by a professional of the State's chosing.

Some illnesses can be treated with talk therapy, others cannot. I'm a lawyer, not a doctor. Which specialty goes with which diseases is beyone my expertise.

Despite Krauthammer's solid counterargument, there's good reason for an insanity defense to depend on the defendant being so insane that he does not know that what he is doing is condemned by society: it is under those conditions that deterrence can work.

As I described above, a person would have to be functioning worse than a dog or a cat under that standard.

Also as I said above, jury nullification is the only reason anyone is found to be not guilty by reason of insanity. If we want to limit the defense so far that it applies to no one, then we might as well be honest enough to admit that by abolishing it.

As to the danger upon release, I see that point. That's why it must be a heavy burden for the committed individual to prove his or her safety. Even when released, there must be strict monitoring with immiediate re-commitment for the failure to take meds or who fail to follow through with required out-patient care.

Prosecutors will often correctly argue that shame or an attempt to hide a crime is a sign that a defendant knew right from wrong. But if your dog eats your slippers while you are at work, your dog will often hide because it knows it did wrong.

So, to prove insanity, you have to show that a defendant's mental illness has made him or her less mentally fit than a dog.

Sort of, yeah. The thing is, a (normal) dog lacks most of a human's higher mentality, but they nevertheless have at least some sort of social awareness, by which they keep track of what their master(s) consider acceptable behavior. That awareness, or lack of same, is exactly the target of the "strict" insanity defense. Intelligence is pretty much irrelevant. Note that dogs can also be "insane", but most such dogs will simply be put down (executed). Partly that's because we value a dog's life less than a human, but also because it's much more difficult to treat or cure them.

It's another question entirely, whether this *should* be the only reason for treating someone as a "patient" rather than a "criminal". Personally, I consider it almost completely backwards.

Consider that someone unable to distinguish between right and wrong (the permanent version is called a "sociopath") is unlikely to ever be rehabilitated as a member of society.

In contrast, diseases such as schizophrenia, severe depression, or bipolar disorder, can easily render someone confused and/or frenzied enough to hurt or kill someone -- but these days, those illnesses are medically treatable, whereas sociopathy isn't. Worse, punishing people with such a treatable illness is not going to make them any better, especially if they aren't getting proper treatment because the jail is set up for punishment, not therapy!